Twenty questions

Jackson County commissioners have called for a public hearing on a proposed moratorium on new subdivision development while the planning board authors a subdivision ordinance. Commissioners want the ordinance to address concerns such as steep slope development and minimum standards. Here are 20 questions and answers about what is, what is not, and what’s undecided.

1. What’s a moratorium?

A moratorium is a stopping action. If commissioners pass the moratorium, there will be no new subdivision development allowed for the duration of the moratorium.

2. How long is the proposed moratorium?

Commissioners have called for a six-month moratorium. Due to changes in state law, it is difficult to extend a moratorium but easy to call one off early. The planning board has estimated that it needs three months to write a subdivision ordinance drawing largely from one that has been in the works for the past four years. The planning board already has begun meeting twice a month — rather than once — in order to expedite the process.

3. What is a subdivision?

For the purposes of this ordinance, a subdivision includes all divisions of a parcel of land into two or more lots, building sites or other divisions for the purpose of sale or building development, whether immediate or future. It includes all divisions of land involving the construction of a new street or a change in existing roads.

4. What will the moratorium not apply to?

The moratorium will not apply to any project for which a building permit has been issued. It will not apply to any development with vested rights or any development for which substantial expenditures have been made in good faith prior to the moratorium (see question 5). Also, it will not apply to preliminary or final subdivision plats accepted for review prior to the call for a public hearing, which was made Monday, Feb. 5. It will not apply to a single lot divided for the purpose of conveying to heirs. It will not apply to the division of land into no more than two parcels for the purpose of conveying at least one lot to an heir. It will not apply to land ordered divided by the court, land divided for cemetery plots, land divided for the purpose of changing boundary lines between adjoining property owners where no new road right-of-way dedication is involved.

In addition, the moratorium will not apply to the combination of lots where the total number of lots is not increased and the resulting lots are equal to or exceed standards set forth by the ordinance; the division of land into parcels greater than 10 acres where no road right-of-way dedication is involved; the public acquisition of land for widening or opening roads; the division of a tract in single ownership, the entire area of which is no greater than two acres, into no more than three lots, if no street right-of-way dedication is involved and resulting lots meet or exceed ordinance standards. The moratorium will not apply to bona fide farm operations except as allowed by general statute 153A-340(b).

5. What are vested rights?

Establishing vested rights during the moratorium would allow for development to continue during the moratorium. State statute has established vested rights for site-specific development. Also, common law allows for vested rights to be established in cases where a landowner has taken action that would result in a burden or hardship befalling them should the moratorium apply. For example, the simple act of buying land does not mean rights are vested. If no improvements have been made to the tract, it would not qualify for continued development during the moratorium. But if a landowner were to have put in a network of roads, utilities, and made substantial expenditures then the subdivision could potentially establish vested rights. Common law vested rights are not clear-cut, said attorney Michael Egan, who is consulting with county officials about the moratorium and subdivision ordinances.

6. Who will determine if I have vested rights?

If the moratorium is adopted, county commissioners will create a vested rights committee. The committee will be a group of professionals working by county appointment to review plats and requested documentation such as an erosion control permit, Department of Transportation permits, or a lot survey to determine if development may proceed. Applications will only end up in front of the vested rights committee if a landowner challenges land records staff’s initial ruling upon plat submittal.

7. What happens if it is determined that I do not have vested rights?

If the vested rights committee determines that the project was not an ongoing subdivision prior to Feb. 5, the development will be halted for the duration of the moratorium.

8. What is development?

Any manmade changes to improved or unimproved real estate including but not limited to buildings, mining, dredging, filling, grading, paving, excavation, or drilling. It is not considered ordinary maintenance, landscaping, home gardens, repairs, additions or minor modifications to single-family homes, and cutting firewood for personal use.

9. What if I’ve owned land and had plans for a subdivision, but haven’t started yet?

If no work has been done on the land for two years prior to Feb. 5, then the landowner most likely will not have vested rights, said attorney Egan.

10. How will this affect an individual’s plans to build a home?

The moratorium will not apply to subdivisions already underway. It will not apply to single-family homes constructed outside of a subdivision. If a home is to be the first home in a subdivision and a building permit has not been issued, the developer will have to establish vested rights.

11. I suddenly need to sell a piece of my property in order to generate income. Can I?

Nothing about a moratorium on development prohibits the buying and selling of land. Whether that land can be built on during the moratorium or will be subject to subdivision regulations will be judged on a case-by-case basis. However an individual selling a single tract of land most likely wouldn’t qualify as a subdivision anyway, particularly if that tract is already accessible by road.

12. How will this affect phased developments?

The phases of a development that have not yet been started will be subject to the moratorium if passed — vested rights will not apply to the development as a whole.

13. Why do we need a moratorium?

By law a moratorium ordinance must include the reasoning behind it. The draft ordinance includes the following findings of fact: from 1990 to 2000, the county population increased by 23.4 percent, which greatly exceeds the national growth rate, the county is projected to growth another 17.2 percent between 2000 and 2010; the county is growing without land use, infrastructure and transportation policies to guide its development; between 2000 and 2005 nearly 5,500 new lots were created in 25 subdivisions in Jackson County with no public review and analysis as to the adequacy of their roads, impacts on public service, and the natural environment; the board of commissioners believes a six-month moratorium is needed to adopt subdivision regulations; and in light of the number of new subdivisions being platted each year and their impact, the board believes the alternative of continuing to allow subdivision of land without review to be unacceptable. For additional findings of fact read the draft moratorium ordinance.

14. Where can I get a copy of the moratorium ordinance?

A copy is available online or at the county planning office in the Justice and Administration building.

15. How many subdivisions are currently under way in Jackson County?

According to Linda Cable, planning director, there are approximately 50 subdivisions in various stages. However, it’s hard to keep track. The county has had no process for review — another goal of creating a subdivision ordinance. Commissioner Joe Cowan cited rumors of newly proposed developments totaling several thousand acres each as reason enough to move forward with a moratorium and subdivision regulations.

16. When is the public hearing?

The public hearing about the moratorium ordinance will be held at 6 p.m. Feb. 27 in the Justice and Administration center in Sylva. Due to community interest, the hearing most likely will be in one of the county courtrooms, located on the second floor.

17. Will the moratorium or proposed subdivision regulations apply within city limits?

No, they will only apply on land within the county — land that does not pay municipal taxes, nor is in an incorporated township.

18. What happened Tuesday morning, Feb. 6? I tried to record a plat and was told I couldn’t.

County commissioners hotly debated when land recorded in county records should fall subject to the proposed moratorium. They voted 4 to 1 that any plats that were accepted prior to the call for a public hearing the evening of Feb. 5 would not be subject to the moratorium — any submitted beginning Feb. 6 will be should the moratorium pass. However, there was miscommunication between county offices and register of deeds staff that temporarily stopped accepting any plats for recording. By 11 a.m. the situation was rectified. Anyone who attempted to record a plat that morning is encouraged to try again if they haven’t already.

19. Will there be a point that I’ve submitted a plat for review and it just sits there?

No. County Manager Ken Westmoreland said that the register of deeds and land records offices will continue to accept and review plats. The turnaround time may be longer however. Traditionally a review took about five minutes as staff looked for names and addresses, a correct description of the tract in question and a quick check to determine whether it was in the watershed. Now staff members are the first line in determining whether a plat is in an existing subdivision or potentially subject to the moratorium if it is passed.

20. What happens if I violate the moratorium?

Violation will constitute a misdemeanor and offenders will be subject to a $500 fine. Each week’s continuing violation will be a separate offense.